39 F. 757 -

39 F1d 757

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Case Text

UNITED STATES V. COUNTY COURT OF KNOX COUNTY.

7.57

cross-examination the possession of any of these bonds, she stated on her direct examination that the proceeds of the Lewis notes were, about 1878, put into these bonds or into Southern Pacific bonds. Preble seldom went to her safe, and she may not have known about these bonds. Taking all the evidence together, I cannot say that the jury were mistaken in their finding on this item. The verdict was for $34,772.88, and there should be a remission of $3,636 ..53, covering the value of $1,000 Chicago sewerage and $1,000 J\!IinneBpolis bonds, with premium and interest, Bnd the plaintiff may elect to take judgment for $31,136.3.5, or a new trial will be granted. Cattle Co. v. 1l1Lmn, 9 Sup. Ct. Rep. 458 j Kennon v. Gilmer, Id. 696.

Where a bill to modify the method of collecting a judgment which was not stayed by giving a s'upersedeas bond, as allowed by statute, was dismissed, and no interlocutory order affecting such judgment was ever made in the proceeding on the bill, a supersedeas bond upon appeal from such dismissal only stays any orders made in the proceeding on such bill, and does not operate to reo strain the collection of the original judgment, even though the proceeding on the bill be deemed a mere continuation of the original action.JUDGMENT-!NJUKC1'ION TO RESTRAIN-COLLECTION.

2.

Where the original judgment has stood for eight years, and the debtor admits the justice thereof, merely seeking to change the method of collecting it, its collection will not be restrained pending the appeal from the dismissal of the bill.

At Law. On motion for rehearing. For former report, see 15 Fed. Rep. 704. Thomas K. Skinlcer ano John B. Henderson, for relator. James Carr, for respondent. , BREWER,J. In tbis case there is a petition for a rehearing. In 1881, Harshman recovered a judgment against Knox county. I That judgment has never been disturbed. No proceedings in error were taken, and no supersedeas bOnd given to stay the collection of that judgment within the 60 days allowed by statute, or, indeed, at any other time. Years after, there having been some intermediate proceedings on mandamus, the defendant in that judgment filed a bill in equity to restrain its collection, or perhaps more correctly to modify the method of collection. In that equitable proceeding no interlocutory order was entered, and when the matter came up for final hearing a decree was entered dismissing the bill. Appeal WBS prayed from that decree, allowed, Bnd appeal-bond fixed in the sum of $500, and given. Now the contention is
1 Not

reported.

758

FEDERAL REPORTER,

vol. 39.

that the giving of the appeal-bond operates, as a matter of law, to restrain the collection of the original judgment. The statutes give to a party against whom a money judgment is rendered the right to stay that judgment by giving a supersedeas bond within 60 days. That was not done in this case, and it is a general rule that that which cannot be done directly cannot be done indirectly. It would be strange if a judgment debtor, failing to supersede by givingdil'ectly a supersedeas bond, could years after, by a bill in equity to restrain or modify that judgment, obtain by indIrection the same supersedeas and stay. The principle is the same whether the judgment debtor is a county or an individual. T() neither is the right given to stay it by this indirect process. It is said that the bill in equity of the county is not an independent suit; that it is a mere continuation of the original action. So it is for some purposes, but, although it be a continuation of the original action, an appeal-bond in this continuation ought not to have any effect upon 'the original judgment. It may supersede any order made in this subsequent proceeding, but there was nothing here except a judgment for costs to supersede. There was no interlocutory order, no oruer in the case affecting that judgment at law, and, whatever may be superseded, it is only that which is part and parcel of this continuation proceeding. ,It seems to us that there can be no doubt that, as this bill was dismissed, as no interlocutory order was ever made, a sgpersedeos bond upon an appeal from such dismissal has no effect whatever upon the original judgment. That remains, with every right to collect which it had at the time it was rendered. It is further insisted that if there be no sgpersedeas of right by virtue of this appeal-bond, the court a controlling power over all its processes, and 1I, ,it it ought to stop the collection of this judgment at law until the question presented by this bill in equity has been finally determined by the supreme court. Assuming that it is true that the court has such controHing power, it seems to us that it would be grossly inequitable to exercise it ill this case. Of the validity and justice of the original judgment at law, so far as respects the indebtedness, no question is made. All that is challenged is that part of it which refers to the collection and the amount of taxes that can be yearly enforced. Now, when a debtor admits the justice of the debt, when judgment thereon has stood against him for eight years, we see no equity in restraining for years longer all efforts to collect while he simply pursues a litigation to change the method of collection. The petition for rehearing will be denied.

H'liIAB II. SEEBERGER.

759

McN AB V.

SEEBERGER,

Collector of-Customs.

(Oircuit Oourt, N. D. illinois. July lS, 1889.)
1.

CUSTOMS DUTIES-CLASSIFICATION.

Act Congo March 3, 1883, (Heyl's Arrangement, cl. 336,) provides a customs duty on "flax or linen thread, twine, and pack thread" of 40 per cent. ad valorem. Clause 347 provides a duty on "seine and gilling twine" of 25 per cent. Plaintiff imported linen twine, on which he paid a duty of 40 per cent., under protest that it was "seine twine." It appeared that the goods were composed of several yarns, loosely twisted together, and known to the trade as" gill twine." They were classed as book or pamphlet twine, which is composed of single yarns, not twisted together, but of abollt the size and strength of one of the yarns of the twine in question. Held, that the goods were only subject to a duty of 25 per cent.
SAME-RECOVEHY OF PAYMENTS-PROTES'l'.

2.

Plaintiff's right of recovery is not affected by the fact that his protest claimed the goods to be "seine twine," While the proof showed them to be "giJIing twine," as the two terms are convertible for the purposes of the question in issue.

At Law. Action to recover customs duties. The plaintiff, Joseph D. McNab, imported linen twine, which he claimed was subject to duty at 25 per cent. ad valorem, as "seine twine." The collector classed the goods as "linen thread," on which there wag a duty of 40 per cent. ad valorem. Plaintiff paid the duty under protest, and appealed to the secretary of the treasury. The action of the collector being affirmed by the secretary, plaintiff brings this suit to recover the excess. P. L. Shuman, for plaintiff. W. G. Ewing, U. S. Atty., and G. H. Harris, Asst. U. S. Atty., for defendant.
BLODGETT, J. Plaintiff imported a quantity of linen twine, which the collector classified as linen thread, and assessed a duty thereon at 40 per centum ad valorem, under clause 336 of Heyl's Arrangement of the act of March 3.1883, which reads: "Flax orlinen thread, twine and pack thread and all manufactures of flax, or of which flax shall be the component material of chief value, not specially enumerated or provided for in this act,40 per centum ad valorem." Plaintiff insisted that said goods should have been classed as" seine" and "gilling" twine, under clause 347 of Heyl, which reads, "Seine and gilling twine, 25 per centum ad valorem," paid the duties imposed under protest, appealed to the secretary of the treasury, by whom the action of the collector was affirmed, and in apt time brought this suit to recover the excessive duties which plaintiff claims were imposed upon the goods. The goods in question are composed of several yarns, say from six to thirty, according to the strength required, which are laid together and loosely twisted, and the proof shows that these goods are known to the trade as "gill twine," or sometimes spoken of in the trade, and especially by fishermen, as "salmon twine." The use of said goods is almost exclusively that of making gill-nets for catching salmon.